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English Court of Appeal avoids answering whether or not proprietary rights exist in the content of e-mails

In Fairstar Heavy Transport NV v Adkins & Anor [2013] EWCA Civ 886, the Court of Appeal of England and Wales has found that the High Court was wrong to consider whether there were proprietary rights in the contents of emails, as the issue before the High Court in this case should have been decided under the laws of agency. Although the Court of Appeal doubted proprietary rights could exist in the contents of emails, the question remains open.

BACKGROUND

Fairstar Heavy Transport NV, is a Dutch company specialising in the transportation of heavy and valuable large machinery. Philip Adkins is the former CEO of Fairstar. He was employed through the second defendant, Claranet Ltd. As Mr Adkins was not employed directly by Fairstar, copies of e-mails for his attention were forwarded automatically to his e-mail address, hosted by Claranet’s server. Fairstar contended that these e-mails were deleted automatically from Fairstar’s server and that, once forwarded, Fairstar no longer had access to them.

The e-mails forwarded to Mr Adkins during the course of his employment were required for use as evidence in a dispute with a Chinese shipyard supplier and an investigation by the Norwegian stock exchange. Mr Adkins contested Fairstar’s right to see the e-mails and, since under the terms of Mr Adkins’ employment contract all disputes were subject to the jurisdiction of the Dutch courts, Fairstar was required to prove ownership of the content of the e-mails in order to gain access to them.

At first instance, the Honourable Mr Justice Edwards-Stuart held in favour of Mr Adkins as he considered the e-mails to be information and consequently did not find any basis for establishing a proprietary right in their content.

DECISION

Lord Justice Mummery began by noting that the only claim made by Fairstar was a proprietary right to the content of the emails. Fairstar made no claim as to breach of confidence, ownership of copyright in the emails or breach of fiduciary duty. He also noted that there was no dispute that Mr Adkins was the agent of Fairstar.

Lord Justice Mummery considered that the reference to a "proprietary right" in Fairstar’s original application distracted from this agency relationship. This relationship gave rise to the right to inspect and copy the e-mails without the need for a debate as to whether or not proprietary rights existed in the e-mails. As Mr Adkins was Fairstar’s agent, Fairstar was entitled to inspect and copy the e-mails and should have been permitted to do so at first instance. This also meant the Court was not required to engage in a debate as to whether or not, in fact or in law, a proprietary right existed in the e-mails.

Mr Adkins was, the Court of Appeal found, required to allow Fairstar to inspect e-mails sent to or received by him and relating to Fairstar’s business. This duty survived the termination of the agency.

COMMENT

The reliance on the agency relationship between the parties allowed the Court of Appeal to avoid the debate over whether or not proprietary rights existed in the e-mails. That said, Lord Justice Mummery did suggest it would be unwise for the courts to take a broad position on this point. He suggested that, in the future and to take just one example, the courts may want to draw a distinction between know-how and personal information. Whilst the judgment in this case supports the view that there are no proprietary rights in e-mails as such, it does leave open the possibility that proprietary rights could be found to exist in specific circumstances.

Compare jurisdictions: Litigation: Enforcement of Foreign Judgments

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